FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Mar 28, 2023 SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON
No. 2:22-CV-00182-MKD Plaintiff, ORDER GRANTING IN PART AND v. DENYING IN PART DEFENDANT WEBBANK’S AMENDED MOTION WEBBANK; EXPERIAN TO DISMISS INFORMATION SOLUTIONS, INC., ECF No. 31 Defendants.
Before the Court is Defendant WebBank’s (“WebBank”) Amended Motion to Dismiss, ECF No. 31. Plaintiff’s Complaint alleges that both WebBank and Defendant Experian Information Solutions, Inc. (“Experian”) violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., and California’s Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”), California Civil Code § 1788.17. WebBank argues that Plaintiffs’ claims against it should be dismissed for lack of subject-matter jurisdiction and for failure to state a claim. For the reasons stated herein, WebBank’s motion to dismiss Plaintiff’s Rosenthal Act claims for lack of subject matter jurisdiction is GRANTED.
WebBank’s motion to dismiss Plaintiff’s FCRA claim against WebBank is
A. Factual Background As explained below, WebBank makes a facial attack on subject matter jurisdiction and argues that Plaintiff’s Complaint fails to state a claim upon which relief can be granted. Therefore, the Court presumes all facts as alleged in the
Complaint are true. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (standard for Fed. R. Civ. P. 12(b)(1)); Barker v. Riverside Cnty. Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (standard for Fed. R. Civ. P. 12(b)(6)).
The facts as alleges are as follows. Plaintiff is a resident of Spokane, Washington. ECF No. 1-1 at 3 ¶ 1. WebBank is a corporation headquartered in Utah that regularly conducts business in Washington. ECF No. 1-1 at 3 ¶ 2. WebBank, in the ordinary course of
business, furnishes information relating to consumer transactions to credit reporting agencies. ECF No. 1-1 at 3 ¶ 2. On or about November 2014, Plaintiff incurred a personal debt from “Fingerhut” through WebBank. ECF No. 1-1 at 4 ¶
11. As a result, WebBank placed “trade lines” on Plaintiff’s credit report.1 ECF No. 1-1 at 5 ¶ 12.
Plaintiff, in reviewing her credit report, noticed an error. ECF No. 1-1 at 5 ¶ 13. Experian, a consumer reporting agency and a non-moving defendant in this case, reported more recent dates than were accurate for the Fingerhut account.
ECF No. 1-1 at 5 ¶ 13. Specifically, the “Date of Status”2 on Plaintiff’s credit report for the Fingerhut account was reported as more recent than it had been previously reported, despite no change in the Fingerhut account’s status. ECF No. 1-1 at 5 ¶ 14.
On March 20, 2020, Plaintiff sent a dispute letter to Experian, disputing the Fingerhut account. ECF No. 1-1 at 5 ¶ 15. In response, the Date of Status was changed to February 2017, which was still inaccurate. ECF No. 1-1 at 5 ¶ 16.
1 “Trade lines” are records on a credit account that are provided to credit reporting agencies that describe credit-related items such as mortgages, lines of credit, credit cards, and so on. See Cristobal v. Equifax, Inc., No. 16-cv-06329-JST, 2017 WL 1489274, at *1 n.3 (N.D. Cal. Apr. 26, 2017). 2 The Date of Status “represents the day a debt is deemed uncollectible and thus charged off.” See Coulter v. Chase Bank USA, N.A., No. 18-1538, 2020 WL 5820700, at *2 (E.D. Pa. Sept. 30, 2020). Plaintiff alleges “WebBank[’s] erroneous reporting to Experian resulted in the date change[,]” ECF No. 1-1 at 5 ¶ 18, and that “[a]fter Plaintiff’s requests to
investigate, WebBank failed to conduct a reasonable investigation.” ECF No. 1-1 at 5 ¶ 19. Plaintiff also alleges that “Experian failed to conduct a reasonable investigation into the accuracy of the trade line and allowed/enabled WebBank to
erroneously change reporting dates on Plaintiff’s credit report[.]” ECF No. 1-1 at 5 ¶ 20. Plaintiff alleges damages in the form of injury to credit worthiness and mental anguish, humiliation, and embarrassment. ECF No. 1-1 at 5-6 ¶¶ 23, 24.
B. Procedural History On March 3, 2022, Plaintiff filed her Complaint in the Superior Court of the State of California in Orange County. ECF No. 1-1 at 2. On May 6, 2022,
Experian, joined by WebBank, removed the matter to the United States District Court for the Central District of California. ECF No. 1; ECF No. 1-2. On May 13, 2022, WebBank filed a Motion to Dismiss Plaintiff’s Complaint. ECF No. 12. WebBank argued that the Central District of California lacked personal jurisdiction
and that Plaintiff’s Complaint failed to state a claim upon which relief could be granted. ECF No. 12 at 9-18. Plaintiff opposed, and argued that, if the Central District of California lacked personal jurisdiction, the Court should transfer the
case to the Eastern District of Washington pursuant to 28 U.S.C. § 1406.3 ECF No. 18 at 18.
On July 25, 2022, the Hon. David O. Carter of the Central District of California, granted WebBank’s motion. ECF No. 26. Judge Carter concluded that the Central District of California did not have personal jurisdiction over WebBank,
and therefore declined to consider WebBank’s Fed. R. Civ. P. 12(b)(6) argument. ECF No. 26 at 4. Judge Carter transferred the case to the Eastern District of Washington, and reserved consideration of the Fed. R. Civ. P. 12(b)(6) argument for this Court. ECF No. 26 at 4-5.
WebBank has refiled its motion to dismiss, amended. ECF No. 31 at 3-4. WebBank has removed the personal jurisdiction argument, challenges subject matter jurisdiction, and reasserts its Fed. R. Civ. P. 12(b)(6) argument.
3 “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). A. Fed. R. Civ. P. 12(b)(1)
“A [Fed. R. Civ. P. 12(b)(1)] jurisdictional attack may be facial or factual.” Safe Air, 373 F.3d at 1039. “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal
jurisdiction.” Id. The reviewing court is to accept the allegations as true and draw all reasonable inferences in the plaintiff’s favor “unless challenged by the defendant.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). For a factual attack, the movant challenges the veracity of the allegations. Safe Air, 373 F.3d at
1039. “[T]he district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Id. The reviewing court is not required to accept the allegations as true. Id.
B. Fed. R. Civ. P. 12(b)(6) Fed. R. Civ. P. 8(a)(2) provides that “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief[.]” A motion to dismiss under Fed. R. Civ. P. 12(b)(6)
tests the legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To avoid dismissal under this rule, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A court reviewing a Fed. R. Civ. P. 12(b)(6) motion must presume all facts alleged in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Id.; Barker, 584 F.3d at 824. However, a court need not “assume the truth
of legal conclusions merely because they are cast in the form of factual allegations.” Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Dismissal is appropriate for “lack of a cognizable legal theory” or “absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica
Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A. Rosenthal Act Claims
WebBank argues that Plaintiff’s claim arising under California’s Rosenthal Act should be dismissed because Plaintiff, a resident of Washington, lacks standing to bring the claim. ECF No. 31 at 6-7. “Article III federal courts are limited to deciding ‘cases’ and ‘controversies.’” Colwell v. HHS, 558 F.3d 1112, 1121 (9th
Cir. 2009) (citing U.S. Const. art. III, § 2). A plaintiff must have standing to bring a case or controversy. Lujan v. Def. of Wildlife, 504 U.S. 555, 559-60 (1992). Standing requires an “injury in fact—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (internal quotations and citations removed).
WebBank argues that Plaintiff, a Washington resident, has no standing to assert a claim against a Utah corporation under a California statue. ECF No. 31 at 8 (citing Jones v. Micron Tech. Inc., 400 F. Supp. 3d 897, 908 (N.D. Cal. 2019)).
Plaintiff “does not oppose Defendant’s motion regarding these claims[,]” recognizing that “this claim is no longer in a California jurisdiction.” ECF No. 38 at 4 n.1. The Court treats the argument as conceded. Indeed, plaintiffs generally lack standing to assert claims under the laws of states other than those where the
plaintiff resides or was injured. See Jones, 400 F. Supp. 3d at 908. Plaintiff’s Rosenthal Act claim against WebBank is dismissed. Plaintiff also brings a claim under the Rosenthal Act against Experian. ECF
No. 1-1 at 9 ¶ 48-52. The Court must consider whether it has subject-matter jurisdiction over this claim as well. Fed. R. Civ. P. 12(h)(3) provides that “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” A district court must sua sponte dismiss a claim where it lacks
subject matter jurisdiction, regardless of whether the parties raise the issue. D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008); Scholastic Entm’t, Inc. v. Fox Entm’t Group, Inc., 336 F.3d 982, 985-86 (9th Cir. 2003).
Plaintiff may not assert a Rosenthal Act claim against Experian for the same reason that Plaintiff may not assert such a claim against WebBank. Plaintiff’s Rosenthal Act claim against Experian is dismissed.
B. FCRA Claim against WebBank The FCRA’s purpose is to “ensure accurate reporting about the ‘credit worthiness, credit standing, credit capacity, character, and general reputation of
consumers.’” Gross v. CitiMortgage, Inc., 33 F.4th 1246, 1250-51 (9th Cir. 2022) (quoting 15 U.S.C. § 1681(a)(2)). The FCRA imposes civil liability for willful, knowing, and negligent noncompliance. 15 U.S.C. §§ 1681n, 1681o. Plaintiff’s Complaint alleges that WebBank is a “furnisher” for FCRA
purposes. ECF No. 1-1 at 3 ¶ 2. Section 1681s-2 provides the “[r]esponsibilities of furnishers of information to consumer reporting agencies[.]” Section 1681s-2(b) provides the “[d]uties of furnishers of information upon notice of dispute.” In
general, furnishers, upon notice of a dispute of the accuracy of information provided to a consumer reporting agency (“CRA”), must do as follows: (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the consumer reporting agency pursuant to [15 USCS § 1681i(a)(2)]; (C) report the results of the investigation to the consumer reporting agency; (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and (E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under paragraph (1), for purposes of reporting to a consumer reporting agency only, as appropriate, based on the results of the reinvestigation promptly— (i) modify that item of information; (ii) delete that item of information; or (iii) permanently block the reporting of that item of information.
15 U.S.C. § 1681s-2(b)(1); see also Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 (9th Cir. 2009) (“These duties arise only after the furnisher receives notice of dispute from a CRA.”) (citing 15 U.S.C. § 1681s-2(b)(1)). The investigation imposed upon a furnisher under Section 1681s-2(b)(1) “must be at least reasonable and non-cursory.” Gross, 33 F.4th at 1251 (internal quotations omitted). A plaintiff pursuing a lawsuit against a furnisher must establish that the contested information is inaccurate. Id. WebBank does not contest that it is a furnisher of information but argues that Plaintiff has not sufficiently alleged that WebBank failed its FCRA obligations. ECF No. 31 at 12-13. WebBank’s argument is twofold. First, WebBank challenges Plaintiff’s allegations, contending that “the information that Plaintiff pleads is inaccurate is not even reported by WebBank.” ECF No. 31 at 13-14. Second, WebBank assets that Plaintiff fails to allege that WebBank received notice from a CRA, thus giving rise to its Section 1681s-2(b) obligations.
The Court considers each argument in turn. 1. Whether Plaintiff Sufficiently Alleges Inaccurate Information WebBank argues that, in its standard practice in dealing with notices of
dispute from consumer reporting agencies, it does not provide the information that Plaintiff alleges was inaccurate in her statement. Therefore, WebBank argues, Plaintiff has failed to plead that WebBank provided inaccurate information.
WebBank asks the Court to consider documents outside the Complaint. ECF No. 32 at 14 n.1. WebBank argues that the Court may consider this additional information because “Plaintiff has made it a part of the Compliant when she provided the procedures by which CRAs and furnishers report information about
consumers under the FCRA.” ECF No. 31 at 14 at n.1; see also ECF No. 39 at 3. WebBank asks the Court to consider documents related to disputes over the accuracy of information in a credit report. WebBank explains that, when it
receives a dispute, it uses two forms to confirm the accuracy of information, the “automated consumer dispute verification form” (“ACDV”), and the “Metro 2” reporting system. ECF No. 31 at 5. WebBank submits a blank ACDV form for the Court’s review. ECF No. 12-3. WebBank argues that there are no fields on the
ACDV form entitled “Date of Status” or “First Reported Date.” ECF No. 31 at 14. WebBank directs the Court to the Consumer Data Industry Association’s website, which provides general information on the Metro 2 Format. Metro 2® Format for
Credit Reporting, Consumer Data Industry Association, https://www.cdiaonline.org/resources/ furnishers-of-data-overview/metro2- information/ (last visited March 21, 2023). WebBank, in conclusory fashion,
offers that “[t]he Metro 2 reporting format . . . meets all requirements for data furnishers under the FCRA.” ECF No. 31 at 6. For this conclusion, WebBank cites to the Declaration of Kelly Gray, the Manager of Credit Bureau Reporting at
BLST Operating Company, LLC. ECF No. 12-4. Ms. Gray further claims that “[t]he Metro 2 form does not have a reporting field for ‘Date of Status’ or ‘First Reported Date.’” ECF No. 12-4 at 5 ¶ 19. For a court to consider materials not attached to a complaint, the complaint
must “necessarily rel[y]” upon them and their authenticity must be uncontested. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). For incorporation, a document’s
contents must be described within and be integral to the complaint. See Orellana v. Mayorkas, 6 F.4th 1034, 1042-43 (9th Cir. 2021). “The doctrine [of incorporation] is meant to prevent plaintiffs ‘from selecting only portions of documents that support their claims, while omitting portions of those very
documents that weaken—or doom—their claims.’” C.B. v. Moreno Valley Unified Sch. Dist., 544 F. Supp. 3d 973, 988-89 (C.D. Cal. 2021) (quoting Khoja v. Orexigen Theraputics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018)). The material
WebBank provided to the Court was not necessarily relied upon by Plaintiff in her Complaint nor incorporated by reference.
In essence, WebBank asks the Court to dismiss Plaintiff’s Complaint because WebBank has certain internal processes which ensure compliance with the FCRA. Plaintiff’s Complaint broadly describes some details of WebBank and
Experian’s dispute resolution process, see ECF No. 1-1 at 5 ¶¶ 13-23, but does not necessarily rely upon, or mention, any particular form or process. It is not necessary for Plaintiff to prove deficiencies in the forms for her claim to succeed. Plaintiff does not attempt to obscure any aspect of the case by failing to include the
forms in her Complaint. It would be inappropriate for the Court to consider WebBank’s additional material at this stage. WebBank has not proven that those processes were adhered to in this
instance and that those processes are adequate. This is a factual dispute. A factual dispute cannot be the basis of dismissal under Fed. R. Civ. P. 12(b)(6). Further, adherence to industry guidelines is not a defense to FCRA liability. See Coulter, 2020 WL 5820700, at *12; Florence v. Cenlar Fed. S&L, No. 16-587, 2018 WL
1145804, at *7 (D. Nev. Mar. 1, 2018); Burrows v. Experian Info. Sols., Inc., No. 16-6356, 2017 WL 1046973, at *7 (N.D. Cal. Mar. 20, 2017). Turning to the adequacy of Plaintiff’s allegations, Plaintiff must allege
inaccurate or incomplete information. Gross, 33 F.4th at 1251. Plaintiff’s Complaint alleges that her credit report contains an inaccurate Date of Status for the Fingerhut account. ECF No. 1-1 at 5 ¶ 16. WebBank focuses upon the “Date
of Status” and the “First Reported Date,” arguing that it does not provide such data to CRAs. ECF No. 31 at 14-15. As Plaintiff highlights, this fact does not foreclose the possibility that information WebBank provides to CRAs eventually
becomes the Date of Status or the First Reported Date. ECF No. 38 at 6-8. In Coulter, the Eastern District of Pennsylvania rejected a similar argument to what WebBank argues, here, in denying summary judgment. Coulter, 2020 WL 5820700, at *10. There, the lender defendant “concede[d] that it originated the
information which led to Plaintiff’s Date of Status[.]” Id. The court observed that ACDVs do not have a Date of Status field but could not grant summary judgment because of the remaining dispute over whether the information that the lender
defendant provided resulted in the Date of Status. Id. The Court similarly cannot foreclose the possibility here, prior to an opportunity for discovery. Plaintiff’s Complaint sufficiently alleges that the information on her credit report is inaccurate, which is all that is required at this stage.
Plaintiff must allege that WebBank’s investigation was unreasonable. Gross, 33 F.4th at 1252. Plaintiff alleges that “[u]pon information and belief, WebBank[’s] erroneous reporting to Experian resulted in the date change.” ECF
No. 1-1 at 5 ¶ 18. Plaintiff alleges that “WebBank failed to conduct a reasonable investigation.” ECF No. 1-1 at 5 ¶ 19. Although Plaintiff’s allegations are somewhat unspecific, this allegation is sufficient to survive a Fed. R. Civ. P.
12(b)(6) challenge. It is plausible that WebBank’s investigation resulted in the erroneous information on Plaintiff’s credit report and that the investigation was unreasonable. WebBank’s motion to dismiss Plaintiff’s FCRA claim against it is
denied. 2. Whether Plaintiff Alleges that WebBank was Notified of a Dispute WebBank argues that Plaintiff’s Complaint “never alleges that WebBank received notice of the dispute from the credit reporting agency.” ECF No. 31 at
15.4 Plaintiff argues that her Complaint, at the very least, adequately infers that WebBank received notice of her dispute. ECF No. 38 at 9.
4 WebBank cites to two unreported out-of-district cases to establish four distinct elements that a Section 1681s-2(b) claim must include to survive dismissal under Fed. R. Civ. P. 12(b)(6). ECF No. 31 at 12 (citing Perez v. Medicredit, No. SACV 18-2283JVS(JDEx), 2019 WL 3063514, at *4 (C.D. Cal. Mar. 14, 2019); Ali v. Long Beach Acceptance Corp., No. CIV-F-07-1062 AWI SMS, 2007 WL 3335015, at *3 (E.D. Cal. Nov. 9, 2007)). The Court declines to adopt the rigidity of that approach but broadly agrees that the elements would state a Section 1681s- 2(b) claim. Plaintiff’s Complaint offers factual allegations giving rise to the inference that WebBank was notified of the dispute, as follows: “Upon information and
belief, WebBank erroneous[ly] report[ed] to Experian result[ing] in the date change[,]” ECF No. 1-1 at 5 ¶ 18; “WebBank willfully and negligently failed to properly participate, investigate, and comply with the reinvestigations that were
conducted by any and all credit reporting agencies, concerning the inaccurate information disputed by Plaintiff[,]” ECF No. 1-1 at 6 ¶ 30; and “WebBank willfully and negligently failed to comply with the requirements imposed on furnishers of information pursuant to 15 U.S.C. § 1681s-2(b).” ECF No. 1-1 at 6 ¶
32. The Court is required to accept factual allegations as true and draw reasonable inferences in Plaintiff’s favor. Barker, 584 F.3d at 824. Fed. R. Civ. P.
8(a)(2)’s demand that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief” is necessary to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. Plaintiff’s Complaint alleges sufficient factual matter to put
WebBank on notice of the nature of the FCRA claim against it. WebBank’s motion to dismiss on this ground is denied.5
Plaintiff requests leave to amend in the event that the Court determines that her Complaint is deficient for this reason. “The court should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2); Carolina Cas. Ins. Co.
v. Team Equip., Inc., 741 F.3d 1082, 1086 (9th Cir. 2014). Plaintiff may amend her Complaint to state her claim more definitively, if she so chooses. For the reasons stated above, the Court lacks subject matter jurisdiction to
hear Plaintiff’s Rosenthal Act claims against WebBank and Experian. However, Plaintiff’s Complaint adequately states a claim for which relief can be granted pursuant to the FCRA.
Accordingly, IT IS HEREBY ORDERED:
5 As the Seventh Circuit has observed, the CRA need not tell a consumer when it notifies a furnisher of information about the dispute. Lang v. TCF Nat’l Bank, 249 Fed. App’x 464, 466-67 (7th Cir. 2007) (not reported). “As a result a consumer may not, at the time of filing a complaint, be in a position to allege that notification.” Id. at 466. WebBank is free to establish at summary judgment that it
was never notified of Plaintiff’s dispute. 1. WebBank’s Amended Motion to Dismiss, ECF No. 31, is GRANTED IN PART and DENIED IN PART.
2. Counts III and IV of Plaintiff’s Complaint, ECF No. 1-1, are DISMISSED as described herein. 3. If Plaintiff determines that an amended complaint is needed, as
described herein, she shall file one on or before April 11, 2023. IT IS SO ORDERED. The District Court Executive is directed to enter this Order and provide copies to the parties. DATED March 28, 2023.
s/Mary K. Dimke MARY K. DIMKE